Good morning. Three U.S. Supreme Court justices appointed by former President Donald Trump teamed up with their liberal colleagues to limit the reach of a computer fraud law; defense attorney F. Lee Bailey of O.J. Simpson's "Dream Team" has died; an "unparalleled" leaker at FinCEN is headed to prison; and the Equifax data breach settlement has survived an appellate challenge. Hello, weekend, we're almost ready for you!
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SCOTUS limits reach of computer fraud statute
An unusual coalition of U.S. Supreme Court justices that included its entire liberal wing and all three of former President Donald Trump's appointees came together on Thursday in a closely-watched cybersecurity case to limit the scope of a federal computer fraud law.
Justice Amy Coney Barrett delivered the court's 6-3 ruling, which overturned former Cumming, Georgia police sergeant Nathan Van Buren's conviction under the Computer Fraud and Abuse Act. Van Buren had been prosecuted for misusing a government database to investigate whether a purported local stripper was an undercover cop.
Andrew Chung reports that Barrett concluded Van Buren's conduct was not a crime under the 1986 law because, while he violated a department policy, the information was available to him as part of his job. Ruling otherwise would criminalize "a breathtaking amount of commonplace computer activity," she said.
"Take the workplace," Barrett wrote. "Employers commonly state that computers and electronic devices can be used only for business purposes. So on the Government’s reading of the statute, an employee who sends a personal e-mail or reads the news using her work computer has violated the CFAA."
Justice Clarence Thomas in a dissenting opinion countered that "much of the federal code criminalizes common activity" and that the statute's text was clear. Jeffrey Fisher, a Stanford Law School professor and special counsel at O'Melveny & Myers, who argued the case for Van Buren, said he was "glad that the CFAA is now restricted to its proper reach." Learn more.
Industry buzz
- F. Lee Bailey, a high-profile criminal defense lawyer who represented heiress Patty Hearst and belonged to O.J. Simpson's "Dream Team," died in Georgia on Thursday at the age of 87. Bailey defended Simpson in his 1995 murder trial, but later faced his own legal trouble and was ultimately disbarred. "I lost a great one," Simpson, who was acquitted of murder, tweeted. "F Lee Bailey you will be missed." (Reuters)
- There's a new top lawyer at World Wrestling Entertainment. Samira Shah, a former Cravath attorney and general counsel for fashion retailer Moda Operandi, has moved to WWE as the company's newest general counsel after its prior one was dismissed. (Corporate Counsel)
- Federal prosecutors can use communications between Theranos founder Elizabeth Holmes and the company's law firm, Boies Schiller Flexner, in Holmes' upcoming fraud trial, U.S. Magistrate Judge Nathanael Cousins in San Jose, California, ruled. He said the communications were not shielded by attorney-client privilege because the firm and partner David Boies represented the company, not Holmes' individual interests. Holmes, represented by Lance Wade and Kevin Downey of Williams & Connolly, is slated to face trial in August. (Reuters)
- Clay Long, a founder of what became McKenna Long & Aldridge prior to the Atlanta-based firm's merger with Dentons in 2015, has died at the age of 85 after battling a neurological illness. Long's major clients included Coca-Cola Enterprises. (Atlanta Journal-Constitution)
- Holland & Knight, which is in the process of a planned summer merger with Texas-based Thompson & Knight, has picked up two public policy aficionados from K&L Gates, partner Nick Leibham and senior public affairs advisor Kathleen Nicholas. (Reuters)
- The New York Court of Appeals upheld the dismissal of a proposed class action accusing the legal publisher Matthew Bender & Company of engaging in deceptive business practices by marketing an annual compilation of New York rent regulations and laws known as the "Tanbook" that plaintiffs said was "rife with omissions and inaccuracies." The lawsuit was brought by tenant law firm Himmelstein, McConnell, Gribben, Donoghue & Joseph and the nonprofit Housing Court Answers. Skadden's Anthony Dreyer successfully defended the publisher. Read the ruling.
- New York-based Kelley Drye & Warren has launched an environmental, social and governance practice, the latest firm to capitalize on a surge in demand for guidance on how to navigate the legal complexities of an ESG agenda. The new practice will be led by Wayne D'Angelo and John Foote, who advised Facebook on the creation of its oversight board. (Reuters)
- A total of 65 big law firms have now signed a letter denouncing antisemitism. The letter, which comes after outspoken New York Times columnist Bret Stephens' opinion piece about rampant antisemitism in the country, initially only had 17 signatories. (The American Lawyer)
U.S. Fish and Wildlife Service
The 9th Circuit on Thursday handed environmentalists a win. The court concluded the Trump administration improperly reversed a U.S. Fish and Wildlife Service decision to grant the Pacific walrus endangered species protections because climate change was melting sea ice it relies on to survive. The three-judge panel said the agency failed to explain why in 2017 it reversed a 2011 finding that the Pacific walrus qualified for listing as an endangered or threatened species under the Endangered Species Act of 1973. The Center for Biological Diversity, which had sought the listing and sued, cited findings by the service that by the end of the 21st Century, the Bering Sea, where the walruses live in the winter, will be ice-free for 8-1/2 months of the year. (Reuters)
Coming up today
- Don McGahn, a Jones Day partner who served as White House counsel under former President Donald Trump, is set to be interviewed behind closed doors by the Democratic-led U.S. House Judiciary Committee. The interview stems from a deal struck last month to resolve litigation by House Democrats, who had long sought to enforce a subpoena for McGahn's testimony as part of its investigation into Trump's efforts to impede former Special Counsel Robert Mueller's investigation that documented Russian interference in the 2016 U.S. election.
- U.S. District Judge Edmond Chang in Chicago will hold a virtual status conference in the multidistrict litigation pursued by policyholders against Society Insurance Company. Policyholders sued after their coronavirus-related claims for business interruption coverage were denied. Society, represented by Laura Foggan of Crowell & Moring, is awaiting a ruling on its motion to file a pre-trial appeal of Chang's February ruling in which he allowed the plaintiffs to proceed with claims for loss of business income.
- The 2nd Circuit in New York will consider whether to revive a proposed class action by metals traders accusing several big banks and German chemical giant BASF of conspiring to suppress platinum and palladium prices. The court will hear arguments from Matthew Perez of Labaton Sucharow for the plaintiffs, HSBC counsel, and Paul Mezzina of King & Spalding and Andrew Lawrence of Kirkland & Ellis for BASF.
- The 2nd Circuit will also consider whether to revive a proposed class action accusing energy-services company Spark Energy of making thousands of robocalls to non-consenting call recipients over several years. Kew Gardens, New York-based attorney Todd Bank is the lead plaintiff in the case and will argue the appeal. He will face off against defense lawyer William Peterson of Morgan Lewis.
- John McAfee, the antivirus software pioneer whose former company still bears his name, faces an extradition hearing in Madrid's High Court after being arrested in Barcelona airport last year on U.S. charges. McAfee is facing charges of evading taxes and participating in two cryptocurrency schemes.
- U.S. District Judge Vernon Broderick in Manhattan will consider whether to grant final approval to a $31 million settlement resolving claims that Keurig Dr Pepper attempted to illegally maintain a monopoly over the pods used in its Keurig coffee brewers. Lawyers at the plaintiffs' firms Kaplan Fox & Kilsheimer, Wolf Haldenstein Adler Freeman & Herz and Pearson, Simon & Warshaw are seeking more than $12.6 million in fees and costs. The attorneys general for the states of Illinois and Florida have intervened to object to the settlement's proposed formula for allocating money to consumers in various states. George Cary of Cleary Gottlieb and Wendelynne Newton of Buchanan Ingersoll serve as defense counsel.
What to catch up on this weekend
- Why would someone leave a law firm three times and return again? Sullivan & Cromwell's Karen Patton Seymour says it’s the company culture and the intimate group of partners that she gets to work with. Check out Jenna Greene's "wide ranging" conversation with the former executive vice president and general counsel for Goldman Sachs.
- Can K Street be more diverse? Arriana McLymore took a look at two groups, the National Black Professional Lobbyists Association and the Diversity in Government Relations Coalition, that are hoping to encourage just that by tracking the number of lobbyists of color working in the industry.
- Nearly five months after hundreds of Trump supporters launched a deadly assault on the U.S. Capitol, prosecutors have not carried out an early threat to charge some participants with seditious conspiracy. They may never do so, a law enforcement official and legal experts told Mark Hosenball. That's because of prosecutors' past difficulty in securing convictions on those charges against far-right activists.
- Boies Schiller Flexner saw its associate count drop 25% since last October. Now, the firm has promised to reward the top-billers in what’s left of their associate pool with "extra-extraordinary" year-end bonuses. Caroline Spiezio in a recent article took a close look at the pledged bonuses at David Boies’ firm and what they mean after a period of partner defections.
- Does the NYPD have a right to "clean up" New York City? New York-based artist Michael McLeer, also known as Kaves, doesn't think so. He’s filed a proposed class action lawsuit against the NYPD, which painted over an authorized mural he made in Brooklyn, claiming it violated the Visual Artists Rights Act. In a recent article, Blake Brittain maps out some of the legal implications of covering up street art.
- Ripple Labs, amid its battle with the SEC, has argued the regulator failed to provide clear notice about whether the 10-year-old company's digital currency XRP was subject to federal securities law. The SEC cited that claim to support its argument that the blockchain company waived attorney-client privilege. But a federal magistrate judge in Manhattan concluded Ripple had not "put its subjective state of mind or advice of counsel at issue merely by raising the defense." Alison Frankel takes a deep dive into the battle between the federal regulator and the blockchain company.
- After the national racial reckoning in 2020, many large law firms are now in agreement that Juneteenth, a day which marks the end of slavery in the U.S., should be observed as a work holiday. In the past, few law firms were committed to recognizing the day. Now, dozens of law firms including Latham & Watkins and Davis Wright Tremaine say they are committed to observing the holiday. David Thomas spoke to industry leaders about this new change.
"She claimed that she followed procedure. But she made up her own."
Assistant U.S. Attorney Kimberly Ravener, who spoke in favor of a prison sentence for Natalie Mayflower Sours Edwards, a former senior adviser in the Treasury Department's Financial Crimes Enforcement Network. Edwards pleaded guilty to conspiring to give a BuzzFeed reporter sensitive information about Donald Trump's onetime campaign chairman Paul Manafort and others. U.S. District Judge Gregory Woods in Manhattan sentenced her to six months in prison for the unauthorized disclosure of more than 2,000 suspicious activity reports, leaks that Ravener called "unparalleled" in FinCEN history. (Reuters)
In the courts
- The DOJ is investigating Postmaster General Louis DeJoy, a supporter of former President Donald Trump, in connection with campaign contributions made by employees who worked for him at his former business, New Breed Logistics. Williams & Connolly is representing DeJoy in the probe, a person familiar with the matter said. (Reuters, Washington Post)
- A group of landlords has asked the U.S. Supreme Court to vacate a stay blocking enforcement of a lower-court ruling that declared the U.S. Centers for Disease Control and Prevention's nationwide moratorium on residential evictions unlawful. The Alabama Association of Realtors and Georgia Association of Realtors through lawyers led by Jones Day's Brett Shumate turned to the justices a day after the D.C. Circuit declined to lift the stay that has barred the lower-court ruling from going into effect immediately. The moratorium expires June 30. (Reuters)
- Equifax and plaintiffs' lawyers behind a $380.5 million class action settlement arising from the company’s massive data breach convinced the 11th Circuit to uphold a judge's decision approving the accord and awarding $77.5 million in attorneys' fees. The settlement was challenged by objectors including the conservative class action watchdog Ted Frank of Hamilton Lincoln Law Institute. David Balser of King & Spalding and Kenneth Canfield of Doffermyre Shields Canfield & Knowles defended the deal for Equifax and the class counsel, respectively. (Reuters)
- Bristol Myers Squibb has been hit with a $6.4 billion lawsuit over allegations it delayed its Breyanzi cancer drug to avoid payments to shareholders of the former Celgene Corp, which the drugmaker bought in 2019. Lawyers, including Selendy & Gay's David Elsberg, Katten Muchin Rosenman’s David Crichlow and Cahill Gordon’s Michael Weiss, filed the lawsuit in Manhattan federal court for UMB Bank NA, acting as a trustee for Celgene's former shareholders. (Reuters)
- The 2nd Circuit overturned a judge's ruling finding that the U.S. Treasury Department's Office of the Comptroller of the Currency lacked the authority to grant special purpose national bank charters to fintech companies. The federal appeals court said that the New York Department of Financial Services, which had won that ruling in 2019, lacked standing to pursue the case. (Reuters)
- Oil companies including BP and ConocoPhillips are challenging Fieldwood Energy's proposed reorganization plan, saying it does not appropriately address the company's environmental obligations. Fieldwood's lawyers, led by Weil Gotshal’s Alfredo Perez, are hoping next week to secure approval of the plan from U.S. Bankruptcy Judge Marvin Isgur in Houston. (Reuters)
- The Federal Circuit allowed Amazon.com Inc and 17 other companies with retail websites to escape claims brought by tech company SpeedTrack Inc that they infringed its patent covering improved data organization and search functions. The ruling was a victory for defense lawyers Carter Phillips of Sidley Austin and Michael Berta of Arnold & Porter Kaye Scholer. SpeedTrack was repped by Alan Block of Mckool Smith. (Reuters)
Industry moves
- Trial lawyer Naeun Rim has joined Manatt, Phelps & Phillips in Los Angeles, strengthening its civil litigation and white collar teams. Rim joins the firm as a partner from Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow. (Reuters)
- Fox Rothschild has scooped up three partners, Brian Cousin, Richard Scharlat and Neil Capobianco for its labor and employment practice. The three partners come from McDermott Will & Emery and will be based in New York. (Fox Rothschild)
- Jennifer Librach Nall and Helena Kiepura have joined the patent litigation group of DLA Piper's IP and technology practice as partners. Nall, a former Baker Botts partner, will be based in Austin, and Kiepura, a former Kirkland & Ellis partner, will be based in DC. (DLA Piper)
- Jonathon Foglia, former aviation attorney at KMA Zuckert, is now at Cozen O'Connor's growing D.C. office, where he is a member of its transportation and trade practice. (Cozen)
- Jason Vigna has jumped from Katten Muchin Rosenman to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, where he is a member of the firm's securities litigation practice in New York. (Mintz)
- Andrew Bond, former partner at Davis Wright Tremaine, is the ninth lateral partner to join Sheppard, Mullin, Richter & Hampton this year. Bond will be based in Century City and work in the firm’s corporate and securities practice group. (Sheppard Mullin)
- Yan Julian Zou, former counsel at Pillsbury Winthrop Shaw Pittman, has joined Venable's San Francisco office as a partner in the firm's corporate practice. (Venable)
- John Clough, a former FitzGerald Yap Kreditor partner, has joined Buchalter as a shareholder in the firm’s Los Angeles Office. Clough will be a member of the firm’s litigation practice group. (Buchalter)
Columnist spotlight: Duped again on biblical artifacts, Hobby Lobby sues once-renowned Oxford professor
Lawyer speak: Why juries need to review FDA clearance in medical device trials
Certain federal and state courts do not allow lawyers to mention FDA reviews at trial because they believe juries place too much weight on the reviews when determining liability. But when certain FDA information is excluded, juries do not get the whole story and can be misled, according to Jonathan Tam, Paul LaFata, Jenna Newmark and Christopher Burrichter of Dechert. In a recent article, the lawyers discuss how judges can allow juries to fairly consider evidence from the agency. Read more.
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